• Institutions that neglect prioritizing reporting and transparency • Fear of damaging colleagues • Fear of retaliation • Confusion about what happened • Uncertainty about what to report and to whom • Concerns over loss of friendships • Concerns over having one’s motives questioned • Misunderstood requirements of confidentiality • Reduced motivation stemming from conflicting and unpredictable responses by institutions (e.g., hospitals, professional societies, licensing boards) These barriers cause fear and discomfort in physicians who observe professional misconduct, leading to avoidance, denial, and a wish to rationalize away the behavior. But there is no duty of confidentiality when a colleague has violated or is danger of violating the rights of a patient. Confidentiality is a duty in such a situation only if the offender is one’s patient or another person receiving a formal consultation. Concerns may also arise that patients may be harmed more by a physician workforce shortage, but such excuses for leniency are not acceptable. The report from the FSMB workgroup puts it this way: “In cases involving sexual misconduct, it is simply not true that unsafe or high-risk care is better than no care at all. A single instance, let alone many instances, can cause an extremely high degree of damage to individuals and the communities in which they reside.” 1 Physicians who are not appropriately reported are not stopped. They may move to other states or practices and continue to reoffend. 38 Failure to report results in avoidable additional harms to patients as nearly all professional breaches are repeated, suggesting that many incidents of sexual misconduct go undetected for years. 6 In short, nothing supersedes the ethical and legal duty to report an unfit colleague. How to Report Misconduct Early reporting of sexual misconduct can facilitate prevention and remediation of any harms and is one of the few ways less egregious conduct (such as grooming behaviors) can be addressed before it can lead to more egregious violations. 1 In addition to state medical boards, other entities may need to be notified, including law enforcement, hospital or medical staff administration, and medical school or residency program directors and supervisors. 1 When colleagues have substance- use disorders or other problems that interfere with safe practices, physicians’ assistance organizations can offer opportunity for rehabilitation. Sexual assaults, as defined earlier, should be reported to law enforcement immediately, except in cases where reporting would contravene the wishes of an adult complainant and such non-reporting is permitted by state law. 1,13
Steps to take when one becomes aware of or strongly suspects conduct that threatens patient welfare include the following: 33 • Report the conduct to appropriate clinical authorities (i.e., peer review body if in a hospital) in the first instance misconduct is observed or suspected so that patient welfare can be assessed and any needed remedial action taken • Report directly to the state licensing board when there is an immediate threat to the health and safety of patients or a violation of state licensing provisions • Report to a higher authority if the conduct continues unchanged despite initial reporting • Protect the privacy of any involved patients to the greatest extent possible, consistent with due process • Report to the appropriate authorities (e.g., sexual assaults to law enforcement) • Physician-supervisors who receive reports of alleged incompetent or unethical conduct should: ° evaluate the information critically and objectively ° hold the matter in confidence until resolved °
whether this determination is made by a pattern of complaints or a single egregious incident. 1,29 Statutes of limitations may not apply in cases of rape, sexual assault, and other forms of sexual misconduct, as a trend toward removing these time thresholds is growing within state legislatures. 1 This is being done in recognition that a person who experiences trauma may need time to process the event or to be willing to relive it as part of a complaint process. If the investigation shows a high probability sexual misconduct took place, the board may order a comprehensive evaluation of the physician with the goal of understanding the behavior. 1 The evaluation may require input from multiple disciplines and include conclusions about fitness to practice. Information sought includes any illness, impairment, or underlying conditions that may have predisposed the physician to engage in sexual misconduct or that might put patients at risk and whether any maladaptive behavior is a longstanding pattern. If the board finds enough evidence, the next step is usually to initiate formal charges and schedule an administrative hearing. In most jurisdictions, this step is information that is available to the public. 1 In subsequent hearings and other legal encounters, a physician may offer factual and mitigating defenses. Some states require hearings to be public, although others do have statutory authority to close a hearing during testimony that could reveal the patient-complainant’s identity. 1 Overall, a priority of the board is to guard against public disclosure that might discourage a patient from coming forward with a legitimate complaint against a physician. Expert witnesses may testify to provide insight into factors that led to the alleged sexual misconduct, the level of harm sustained by the patient, and the physician’s risk for recidivism and potential to be rehabilitated. The witnesses may testify as to professional standards expected of a treating physician, the mental health diagnosis, treatment, and relevant status of the accused physician, including level of insight and change. 1 The FSMB calls for fairness in the treatment of complainants and physicians alike. 1 Questioning of complainants and physicians is meant to collect information, not to serve as an aggressive cross- examination. 1 Patient-complainants must be granted fair treatment throughout the regulatory process and be afforded opportunities to report injustices committed against them. Similarly, physicians who are accused of sexual misconduct must be granted due process as cases are investigated and adjudicated. If discipline is required, it should be proportional to the offense. The principle of proportionality in the discipline of physicians highlights the significant shame that is visited upon a disciplined physician and also guides severity of discipline with egregious forms of sexual impropriety. 1
ensure that identified deficiencies are remedied or reported to other appropriate authorities for action Notify the reporting physician when appropriate action has been taken, except in cases of anonymous reporting.
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If one is uncertain after observing something troubling in this domain, it is recommended to consult with an experienced clinician and not to avoid the issue through rationalization. 25 As Glass wrote in the AMA Journal of Ethics, “Ask yourself not just, ‘What should I do?’ but, when the rubber meets the road, ‘Who do I hold myself to be?’” 25 BEFORE MOVING ONTO THE NEXT SECTION, PLEASE COMPLETE CASE STUDY 2 ON THE NEXT PAGE. State Medical Board Investigations The mission of state medical boards is to protect the public. To accomplish this, boards have investigative power and ability to impose punitive measures. Sexual misconduct is grounds for disciplinary action. Sexual misconduct that falls under the category of sexual violation or assault also may meet the criteria for criminal prosecution. 13 When a party makes a complaint, it sets an investigative process in motion that may encompass interviews, audits of patient charts, and/or visits by undercover agents to pose as patients. 23 Medical boards will also review any previous complaints to identify a pattern of behavior. Even before an investigation is complete, a board may issue an emergency suspension against a physician’s license to practice medicine if the physician is judged to pose a risk of imminent harm to patients,
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